Sri. G.V.Balasubramanya,<br /> Member,<br /> COMMON ORDER IN CD NO.301 to 303 and 339/05<br /> <br /> 1. The facts in all the four complaints are similar and directed against the same O.P.s. The complainants were impressed by the second O.P. to become members of the “Holiday time share scheme” floated by the first O.P. Under the scheme the members on paying a certain amount of money would become entitled to accommodation at the resorts owned by the first O.P. and other previlages. All the complainants entered into membership agreement and started paying the membership fee in installments. The details of the agreements and the amount paid by each of the complainant are as under:-<br /> Sl. No. Complaint No. Complainants Name Amount paid<br /> 1. CD 301/05 G.S.Ramamurthy 81,000.00<br /> 2. CD 302/05 A.R.Mukunda Rao 69,916.00<br /> 3. CD 303/05 Armugam.M.N. 40,000.00<br /> 4. CD 339/05 Syed Musaveer 49,004.00<br /> <br /> 2. The complaints of the complainants are two fold. Firstly, that the 2nd O.P. closed her shop some where in the month of Feb.2004 leaving them in lurch with no information about where to make payment of the balance amount and how to avail the benefits under the scheme. Secondly, they were kept in dark about the “Complementary vacation” that was promised by the O.P.s. On these two grounds all the complainants have sought refund of the amount paid by them with interest and cost of Rs.5,000/-.<br /> 3. The second O.P. though received notices in all the complaints did not appear on the appointed day hence she was placed exparte. Thus we have the defence of the first O.P. only. They have admitted the execution of the agreements for the holiday scheme with the complainants, they have submitted that once the contract is entered into between the parties, validity or otherwise of the contract and it’s termination can be raised only before a civil court and not before the Consumer Forum. In view of clause 22 of the agreement the remedy of the complainants is only in civil courts. It is also submitted by the first O.P. that the complainants are not “consumers” and the dispute raised is not a consumer dispute as contemplated under the C.P.Act, 1986. They have stated that except the complainant in C.D.301/05 other complainants are all defaulters having defaulted payment of the installments. The first O.P. has explained in detail the mode of enrolling members by the second O.P. It is stated that presentation of the details of the scheme were made known to the prospective members only if they expressed their willingness to sit through the presentation for two hours. After the presentation if they expressed their willingness towards the concept the second O.P. used to give details of the prices, discounts, installments etc. It was also made clear to the prospective members that after the full payment, the member would have to fill the R.C.I. enrollment application on which the ownership certificate would be given. They have also submitted that the complainants never bothered to get in touch with them either prior to the issuance of reply rejoinder dated 12-04-2005 or after that.<br /> 4. The first O.P. has categorically stated that being in hospitality industry they can not be complacent and incur displeasure of their customers. They have also averred that they have replied all the notices sent by the complainant and are willing to provide the services required to be provided under this scheme. One very important point stressed by them is that the complainants in their notices had expressed their willingness to pay the balance of the contractual amount and by virtue of being defaulters they can not demand any services from them.<br /> 5. From the above contentions the following points arise for our consideration:-<br /> a) Whether the complainants prove deficiency in service on the part of the O.P.s?<br /> b) Whether the first O.P. proves that the complainants being defaulters are not entitled for any relief?<br /> c) What order or relief?<br /> <br /> 6. The above points have been answered as under:-<br /> Point no.5(a): Partly in the affirmative.<br /> Point no.5(b): In the negative.<br /> Point no.5(c): As per final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 5(a):- The case of the complainant in C.D.301/05 is slightly different from others. According to him, he has paid the entire membership fee of Rs.81,000/-. The first O.P. has also issued him membership certificate. Hence, his only complaint is that he was not provided the “Complementary trip” promised. His allegation is that after the second O.P. disassociated herself from the scheme the first O.P. did not contract him per contra. The first O.P. has stated that after the second O.P. left them they provided all necessary information to the members who contacted them. From the copies of the notices produced by the first O.P., it becomes clear that the complainant issued the first notice on 6-9-2004 after making several attempts to get in touch with them. This notice has been issued 9 months after the second O.P. left the services of the first O.P. Though, in the case of the complainant in C.D.301/05 it is a concluded contract. The 1st O.P. as he has paid the entire membership fee, the deficiency has arisen because of not providing the complementary trip as promised. <br /> 8. In the case of other 3 complaints, what we notice is the uncertainty that the complainants faced after the 2nd O.P. left the services of the 1st O.P. She left the services of the 1st O.P. in Feb. 2004 and the payment of installments stopped with that. What happened after that was a long drawn out silence with the complainants desperately trying to reach out to the 1st O.P. There was no clarification, no one to take the balance of the installments and no fulfillment of the promise of complementary trip. It was only in April, 2005 that the 1st O.P. informed the complainants through a reply to the legal notice issued by them that a certain person by name Shri.Prasad had been authorized to accept the installments and issue receipts.<br /> 9. The averment of the 1st O.P. in his reply to the legal notices of the complainants that the officials at Hotel Southern Star had been asked to collect the installments from the members, is not convincing. If the officials had accepted the installments and passed proper receipts, these complaints would not arisen. Certainly, the complainants on seeing 2nd O.P.’s office closed would have made enquiries at Hotel Southern Star within the premises of which she had her office. Obviously, no positive response was forthcoming from the officials of the hotel. Hence, they attempted to call the 1st O.P. and from there also not reassuring voices were heard. Left with no alternative legal notices were issued.<br /> 10. An attempt has been made by the 1st O.P. to draw our attention to the similarities in the set of facts, pleadings and evidence in all the complaints. It is averred that it can not be like that. On this ground the O.P sought permission to cross examine the complainants. However, we disagree with the O.P’s contention. When the complainants have entered into similar transactions and when the cause of action has arisen from similar circumstances, set of facts, pleadings and evidence are all bound to be similar.<br /> 11. Only one copy of the form meant for the complementary trip has been filed. The qualified norms for availing the complementary trip are that the invitee couple should be between the ages 30 and 60 years and that they should attend minimum of two hours of presentation. Thus the complementary trip is virtually available to all those who sit through the presentation regardless of whether they become members or not. In the case of the complainants they have not only attended the presentation but also invested substantial sums of money in the scheme. Hence, they were entitled to get the complementary trip. But withdrawal of the second O.P. from the agency coupled with first O.P.’s failure to appoint another agent in her place left the complainants with no information what so ever. Hence the complainants in C.D.302/05, CD 303/05 and CD 339/05 are also entitled for complementary trip as well as damages.<br /> 12. The contents of the notices issued by the complainants indicate their inability to communicate with the first O.P. The allegations of the complainants that there was no line of communication and no co-operation from the first O.P. whenever contacted over the phone are further substantiated by the fact that payment of installments has stopped after the second O.P. dissociated herself. It was after a long time that the first O.P. gave the names and addresses of the persons to be contacted for paying the installments. It was the duty of the first O.P. to provide the members with the information as the second O.P. wrote letters to the complainants that she was quitting and that they should contact the first O.P for further payment of installments. Hence, we conclude that the first O.P. alone has rendered deficient service and answer the point partly in the affirmative.<br /> 13. Point no.5(b):- The complainants in C.D302/05, 303/05 and 339/05 have admitted that they have not paid the entire membership fees. But they are not defaulters. They were clueless as to where and to whom payments had to be made. After having made part payments they were entitled to receive basic services like proper line of communication, promised complementary trip etc. If the 1st O.P. wakes up only for legal notices we can very well imagine the services that these complainants would get on becoming members.<br /> 14. The defence of the 1st O.P. that the complaint is not maintainable does not merit great deal of discussion. In view of section 3 of the C.P.Act, this Forum has jurisdiction to entertain complaints of this nature. The Hon’ble Supreme Court in K.N.Sharma Vs. Toshali Resorts International and others (1986-2004 Consumer page 7439 (N.S.) has held that “Time share” concept involves element of service and is essentially a consumer dispute. The complainants have thus made out a case of deficiency of service against the first O.P. We are of the view that except the complainant in C.D.301/05 the other complainants are entitled to get back the money paid by them.<br /> 15. Though all the complainants were entitled to complimentary trip it was not provided to them. Further, there was no channel of communication after the second O.P left. The first O.P has retained the monies of the complainants without providing them with any service. This amounts to deficiency of service on the part of the first O.P. Therefore, all the complainants are entitled to get back the monies paid by them. In arriving at the amount of compensation we have determined that for not providing the complimentary trip each complainant is entitled to Rs.3000/-. So for as the interest on investment made by the complainants we feel that the complainant in C.D 301/05 who has paid the entire membership fee is entitled to Rs.15,000/- followed by the complainant in C.D 302/05 who shall get Rs.10,000/-. The other two complainants are entitled to receive Rs.5000/- each. It is, also, made clear that the monies invested by the complainants shall carry interest at 8% if the first O.P does not comply with the order. With these observations we proceed to pass the following order:-<br /> ORDER<br /> <br /> 1. Complaints are allowed.<br /> <br /> 2. The 1st O.P. is directed to refund the complainants the membership fee paid by them with in 2 months from the date of this order failing which the amount shall carry interest at 7% p.a. thereafter until the payment.<br /> 3. The 1st O.P. is further directed to pay to each complainant Rs.3,000/- as damages for not providing the complimentary trip. If the said amount is not paid within 2 months from today it shall carry interest at 7% p.a thereafter until the date of payment.<br /> 4. The first O.P is directed to pay the complainant in C.D 301/05 Rs.15,000, complainant in C.D 302/05 Rs.10,000/- and complainants in C.D 303/05 and 339/05 Rs.5000/- each, towards loss of past interest.<br /> 5. The 1st O.P. shall pay each of the four complainants Rs.500/- as cost.<br /> 6. Keep the original order in the file of C.D.301/05 and a copy of each in the other three files.<br /> 7. Give a copy of this order to both parties according to Rules.<br />